Griffiths v Minister for Lands, Planning and Environment

Griffiths v Minister for Lands, Planning and Environment - [2008] HCA 20 - HCA 2008 case summary — Zoe

[24]

The evident concern of these three conditions of the operation of the substantive provisions of s 24MD(2) relating to extinguishment of native title rights and interests, and compensation, is to avoid racial discrimination. Paragraphs (a), (b) and (ba) address potential kinds or sources of discrimination.
The argument for the appellants fastens upon the word "all" in par (b). The appellants submit that the condition expressed in par (b) can only be satisfied where there are some non-native title rights and interests in the subject land, and they also are acquired. Textually, the argument is inconclusive. There are many contexts, including legislative contexts, in which the word "all" means "any and all". To say, for example, that a company may qualify for a certain order relating to the administration of its affairs only if it has paid all its debts does not disqualify a company that has never traded and therefore never had any debts. Context and purpose will determine whether satisfaction of a condition that all non-native title rights and interests also be acquired is rendered impossible by the circumstance that there are no such rights and interests to acquire.
Such a circumstance, if it exists, would appear to be fortuitous, and unrelated to any discernible legislative object. There is, no doubt, a great deal of land in the Northern Territory in which there are no interests other than native title interests. The same is probably true of Western Australia. How would it advance a legislative purpose against discrimination to distinguish between such land and land where there is a single, perhaps relatively unimportant, non-native title right or interest? Why should the existence of, say, a short-term unregistered lease mean that, during the subsistence of the lease, par (b) could be satisfied, but, upon expiry of the lease, par (b) could not be satisfied? The legislative purpose is against discrimination and discriminatory acquisition. To make the presence or absence of a non-native title right or interest of any kind determinative of the application of s 24MD(2) does not advance that purpose.
It may be added that whether or not any non-native title right or interest exists at any particular time could be a matter of uncertainty. Such rights and interests may not be known at the time of acquisition. It is difficult to accept that there was a legislative acceptance of a possibility with such obvious adverse consequences for reasonable certainty and predictability in land management.
The construction for which the appellants contend appears to produce a curious, in fact inexplicable, new form of discrimination between different kinds of native title rights and interests: those that co-exist with non-native title rights and interests, and those that do not. The former, according to the appellants, are subject to extinguishment by s 24MD(2), whereas the latter are not. Discrimination is judged by making comparisons. The comparisons required by pars (a), (b) and (ba) respectively are different, but all are directed to the same ultimate question: whether, in the compulsory acquisition of native title rights and interests, there is equality of treatment between native title and non-native title rights and interests. That question is capable of being answered by postulating the existence of non-native title rights and interests and asking how they would be affected. It does not require the identification of actual rights or interests and demonstration of how they are affected.
The aim of the legislation is not to ensure that every time some native title rights and interests (regardless of their nature and extent) are acquired there will also be some non-native title rights and interests (regardless of their nature and extent) that also must be acquired. That would be a crude form of equality, but not one that advanced any rational objective. The construction contended for by the first respondent and the interveners better fits the statutory context, the history (as explained in the joint reasons) and the legislative purpose.
GUMMOW, HAYNE AND HEYDON JJ. This appeal from the Northern Territory Court of Appeal[1] (Martin CJ, Mildren and Riley JJ) concerns land at the Town of Timber Creek which is situated at the junction of the Victoria River and Timber Creek in the north-west of the Territory. The Town largely comprises unalienated "Crown land" within the meaning of that term in the Crown Lands Act (NT) ("the CLA"). The Crown land is unaffected by any interest or tenure which might be called "ordinary title", but this appeal was conducted on the footing that there exists with respect to that Crown land "native title" within the meaning given to that expression by s 223 of the Native Title Act 1993 (Cth) ("the NTA").
The term "Crown lands" is defined in s 3 of the CLA as meaning:

[27]

To bring about the acquisition the Minister relies upon provisions of the Lands Acquisition Act (NT) ("the LAA"). Section 43(1) of the LAA empowers the Minister, subject to that statute, to acquire compulsorily land "for any purpose whatsoever" by causing to be published in the Gazette a notice declaring the land to be acquired. That power is conditioned upon compliance with applicable pre-acquisition procedures specified in Pts IV (ss 31B-41) and IVA (ss 42-42D) of the LAA. The term "land" is defined in s 4 as including an "interest" in land which in turn is defined as including "native title" rights and interests within the meaning of s 223 of the NTA. Upon publication in the Gazette of a notice of acquisition, "the land" described therein vests in the Territory freed and discharged from all interests and restrictions of any kind (s 46(1)).
Section 5A(1) provides that the LAA applies in relation to an acquisition of an interest in land comprising native title rights and interests, being an acquisition which is an "act" to which there apply the consequences set out in sub‑ss (6A) or (6B) of s 24MD of the NTA. It will be necessary to refer further to the NTA but it should be indicated here that the appeal in this Court turns upon the interaction between the NTA and the LAA, one a law of the Commonwealth and the other a law of the Territory. This is foreshadowed by the above provisions which link acquisitions under the LAA to s 24MD of the NTA.
Section 24MD(6A) gives to native title holders the same procedural rights in relation to a compulsory acquisition under Territory law as they would have as holders of ordinary title to the land in question and to any adjoining land. Section 24MD(6B) assumes that the purpose of that compulsory acquisition may be the conferral in relation to the land concerned of rights and interests upon persons other than the Territory; in such cases, special provision is made for the determination of objections by an "independent body", but compliance by the Territory with that recommendation is not mandated in all circumstances.
Pursuant to the pre-acquisition procedures provided in Pt IV of the LAA, in 2000 the Minister notified the appellants (Alan Griffiths and William Gulwin on behalf of the Ngaliwurru and Nungali Peoples) of proposals to acquire all interests including native title rights and interests (if any) in the Lots. Thereafter some of the Lots were to be dealt with by granting Crown leases to Warren Pty Ltd for agricultural purposes of a commercial nature, including cattle husbandry and goat breeding, and other Lots were to be offered at public auction for the grant of Crown leases and use for "commercial/tourism development". That purpose appears to have engaged s 24MD(6) of the NTA.
Conformably with the NTA, s 34 of the LAA (which is in Pt IV) provides for the making of objections to proposed acquisitions. The objections by the appellants were heard by the Lands and Mining Tribunal ("the Tribunal")[3] and on 22 March 2002 the Tribunal recommended in favour of the compulsory acquisition of the native title but subject to conditions designed:

[38]

In 1982[9] s 43 was amended so that it then simply read "Subject to this Act, the Minister may, under this Act, acquire land". Following the amendments made to the NTA by the Native Title Amendment Act 1998 (Cth) ("the 1998 NTA Amendment"), the LAA was extensively amended[10]. In particular, s 43 was repealed and s 43 substantially in its present form was introduced.
What had supervened was not only the 1998 NTA Amendment, but the decision of this Court in Clunies-Ross v The Commonwealth[11]. That litigation concerned the power conferred by s 6 of the 1955 federal law to "acquire land for a public purpose". The Court construed that expression as limited to an acquisition of land needed, or proposed for use, application or preservation for the advancement or achievement of a public purpose. The power did not extend to purposes "quite unconnected with any need for or future use of the land"[12], and did not extend to the taking of land merely in order to deprive the owner of the land and thereby advance or achieve some purpose in respect of which the Parliament had power to make laws.
Against that background, the absence from s 43 in its post‑1998 form of any reference to "public purpose" and the presence of the expression "for any purpose whatsoever" may readily be understood as a removal by the Territory legislature of any ground for the limitation of the statutory power by reference to considerations which had prevailed in Clunies-Ross.
It is unnecessary in this case to determine what nevertheless may be the limits to the scope of the power conferred by the broad words of s 43. This is because the expression "for any purpose whatsoever" as it appears in s 43(1) must at least include for the purpose of enabling the exercise of powers conferred upon the executive by another statute of the Territory. Those purposes include the exercise of the power conferred by s 9 of the CLA. This provides that subject to that statute the Minister may in the name of the Territory and by instrument in the appropriate form grant an estate in fee simple or lease of Crown land. Further and more detailed provisions respecting the alienation of Crown land are found in the balance of Pt 3, Div 1 (ss 9‑18) of the CLA.
Further, it is pertinent, though not critical, to note that as Mildren J observed in the Court of Appeal[13]:

[55]

What is apparent from these Parliamentary materials is a legislative proposal to proceed on the basis provided by the previous s 23, permitting future compulsory acquisition of native title rights, but also to ensure that where, as it now appeared to be feasible, native title rights subsisted concurrently with non‑native title rights, any power of acquisition was exercised in a non‑discriminatory fashion by acquiring and extinguishing both species of rights.
However, the appellants submit that this proposal miscarried and was not fully translated into s 24MD(2). This is said to be so because unlike the repealed s 23, the new legislation does not meet the case where all that is present are native title rights and there are no subsisting non‑native title rights which might also be acquired and extinguished.
If Subdiv M applies to a future act then, subject to the provisions in Subdiv P dealing with the right to negotiate, that act is valid. This follows from s 24MD(1). The critical provision is s 24MD(2). This provides (par (c)) that a compulsory acquisition will extinguish the whole or part of the relevant native title rights and interests if three conditions are satisfied. These are contained in pars (a), (b) and (ba). First, the act must be the compulsory acquisition of the whole or part of any native title rights and interests under a law (in the present case of the Territory) that permits both the compulsory acquisition by the Territory of native title rights and interests and the compulsory acquisition of non‑native title rights and interests in relation to land or waters (par (a)). The LAA is such a statute. Secondly, the practices and procedures adopted in acquiring the native title rights and interests must not be such as to cause the native title holders a disadvantage which is greater than that caused to the holders of non‑native title rights and interests when their rights and interests are acquired (par (ba)).
The critical condition for the operation of the extinguishment permitted by s 24MD(2) is that found in par (b). This condition is in the following terms:

[61]

The appeal should be dismissed with an order for costs in favour of the first respondent.
KIRBY J. This is an appeal from a judgment of the Court of Appeal of the Supreme Court of the Northern Territory[25]. That Court's orders allowed an appeal from orders made in the Supreme Court, at first instance, by Angel J[26].
The primary judge had held that the notices of proposal and notices of proposed compulsory acquisition, purportedly issued by the Minister for Lands, Planning and Environment of the Northern Territory ("the Minister") with respect to the land in issue in the proceedings, were invalid and of no effect. The primary judge reached this conclusion on the basis of his analysis of the Lands Acquisition Act (NT) ("the LAA").
There followed an appeal to the Court of Appeal. The Court of Appeal allowed the appeal, ordering that the challenge to the decision of the Minister compulsorily to acquire the subject land be wholly dismissed. Unless reversed by this Court, the appellants' challenge to the acquisition of their native title interest in the land will therefore fail. It was to contest such an outcome that the appellants sought, and obtained, special leave to appeal to this Court.
A majority of this Court[27] upholds the orders of the Court of Appeal. Accordingly, by inference, the acquisitions will now go ahead. I accept that, as the other reasons in this Court demonstrate, if a purely literal approach is taken to the language of the material provisions of the LAA, read against the statutory history of those provisions and together with provisions of the Crown Lands Act (NT) ("the CLA") and the Native Title Act 1993 (Cth) ("the NTA"), a conclusion favourable to the Minister can be persuasively explained.
However, another conclusion is open and in my view it is the preferable view of the legislation. In deciding the appeal, on the issue that is critical for my conclusion and orders, I am affected by considerations of legal authority, legal principle and legal policy that I will identify. These demand respect for the legal rights to property of private individuals in Australia generally, and in particular the legal rights of Aboriginal Australians to what has become known (perhaps unfortunately) as "native title" to their land. Subject to a constitutional question, which was not argued but which it will be necessary to mention[28], the legislature of the Northern Territory might, by express language, overcome the ambiguity in the LAA that is crucial to my determination. However, having failed to enact specific and unambiguous provisions in the LAA, authorising the "private to private" acquisitions purportedly effected in this case, the general language of the LAA relied on by the Northern Territory Minister does not support the acquisitions envisaged in the notices issued by the Minister.
It follows that the notices of proposal and notices of proposed compulsory acquisition were invalid. The primary judge was correct to set them aside. This Court should restore the primary judge's orders. It should do so to uphold, in case of ambiguity and uncertainty, the well-established principles of the common law that are here invoked by the appellants on behalf of the Aboriginal native title holders.

[65]

As was recognised by the Full Court of the Federal Court of Australia in related proceedings[31], the Ngaliwurru and Nungali peoples had maintained their long-standing connection with the Timber Creek district in spite of early violent contact with European settlers and, later, their involvement in the cattle station economy that developed in the vicinity[32]. The history of legal dealings in one of the lots concerned (Lot 109) is in some ways similar to that of the traditional lands of the Wik and Thayorre peoples, the Aboriginal communities described in Wik Peoples v Queensland[33]. In the case of the Ngaliwurru and Nungali peoples, there had been pastoral leases over the land. However, there was an important difference. In the case of the Wik and Thayorre, the land in question was still subject to a pastoral lease, granted under Queensland legislation. In the case of the Ngaliwurru and Nungali people's land, the pastoral leases in respect of Lot 109 near Timber Creek had lapsed. The only legal interests in the lots of land, the subject of the impugned notices, were those of "the Crown", represented by the Government of the Northern Territory, and such interests as still belonged to the Ngaliwurru and Nungali peoples.
Before the decision of this Court in Mabo v Queensland [No 2][34], the interests of the Ngaliwurru and Nungali peoples were not treated by Australian law as legal interests at all. However, following the decisions of this Court in Mabo, reaffirmed in Wik, Australian law belatedly recognised the potential of interests in land, such as those of the Ngaliwurru and Nungali peoples, to qualify as legal interests that might be upheld in the nation's courts. Because the land in question in this appeal was unalienated Crown land, with no inconsistent interest granted to others, the situation of the land at Timber Creek presents (subject to proof) the classic circumstance in which Australian law gives recognition to an established Aboriginal native title. It does so without legal discrimination occasioned by the Aboriginal race of the traditional owners. It does so in accordance with the common law as modified by the provisions of the NTA, as enacted by the Federal Parliament in 1993 with later amendments, including in 1998, following the Wik decision[35].
At the time of the proceedings before the primary judge and also before the Court of Appeal, the claim by the Ngaliwurru and Nungali peoples to native title over the vacant Crown land situated within the town of Timber Creek was undetermined. In fact, no claim to such title had been made before the first notice of proposed acquisition was published. The events concerning one lot, Lot 109, are described in the reasons of Mildren J in the Court of Appeal[36]:

[67]

The Fogarty interests also applied to purchase Lot 47, which was likewise the subject of a notice of proposed acquisition, published on 30 August 2000, and a notice of proposal, dated 4 September 2000. The appellants had filed a native title claim in respect of that Lot on 10 December 1999[37]. Subsequently, following requests received for the release of land for commercial and/or tourism-related purposes, certain other lots in the town (Lots 97, 98, 99, 100 and 114) were the subject of a notice of proposed acquisition, published on 24 January 2000, and a notice of proposal dated 2 February 2000. On 11 May 2000, the appellants filed a native title claim in respect of those lots.
The inference is inescapable that the Ngaliwurru and Nungali peoples, living in and near Timber Creek, would have continued to use the land in harmony with the activities of the Fogarty interests, at least for a time, had the purchase applications not been made by Fogarty (and had the desire to purchase land in the town not been expressed by other interests), resulting in the Minister's move to acquire all interests, notably the native title interests, in the specified lots. It was those moves that propelled the Ngaliwurru and Nungali peoples to invoke the protection of their interests by the Australian courts.
To secure such protection, the Ngaliwurru and Nungali peoples initiated a two-pronged endeavour. The first was an urgent move to object to the Minister's proposed acquisitions of the identified lots under the LAA. The second was a dependent move involving a substantive application to the Federal Court of Australia for a determination, under the NTA s 13, that the Ngaliwurru and Nungali peoples held native title in the subject (and other) land in the town of Timber Creek.
A determination under the NTA was essential to any entitlement of the Aboriginal claimants to "compensation on just terms to the native title holders" for any acquisition of their native title interests that might be found to have lawfully occurred[38]. More fundamentally, establishment of such native title interests would, at once:

[81]

These issues are presented in the alternative. For the appellants to succeed in this appeal, and to secure the restoration of the orders of the primary judge, it would be sufficient for them to prevail on either of the foregoing issues. In my view, the appellants succeed on the first.
I acknowledge the force of the construction argument offered by Gleeson CJ[50] and the joint reasons[51] against the interpretation of the NTA urged for the appellants on the second statutory issue. I am not inclined to disagree with the resolution of that issue favoured by their Honours. However, the larger considerations that are presented by the determination of the first issue are not involved in deciding the second issue.
I will therefore confine my reasons to the first issue. It is sufficient to do so because, in my opinion, the Ngaliwurru and Nungali peoples succeed on that issue. Specificity and high particularity are required for the Northern Territory LAA to permit the Minister to acquire the appellants' native title interests compulsorily for the private benefit of the Fogarty interests and other private interests. Such specificity and particularity are absent from the LAA. That Act, and the apparently large grant of powers to the Minister to acquire land "for any purpose whatsoever", must be read accordingly. That conclusion is fatal to the Minister's notices and to his proposed acquisitions of the appellants' native title rights and interests in the subject land.
Two constitutional questions: Before showing why this is so, I must mention two constitutional questions.
As I have shown, in the second statutory issue, an express constitutional question was raised by the Ngaliwurru and Nungali peoples, founded on the suggested intersection of the federal NTA and the Northern Territory LAA. Pursuant to s 78B of the Judiciary Act 1903 (Cth), the appellants gave notice of constitutional questions in September 2007, shortly before the argument of the appeal in this Court. On the return of the appeal, counsel appeared on behalf of the Attorneys-General of the Commonwealth and of New South Wales and Western Australia, effectively to support submissions advanced by the Northern Territory Minister. In view of the approach that I will adopt to the second statutory issue, it is unnecessary for me to address this first constitutional question.
However, another constitutional question lurks in the background. It was not addressed in written or oral arguments of any party or of the interveners. It was a question raised in, but not finally decided by, the decision of this Court in Newcrest Mining (WA) Ltd v The Commonwealth[52]. The question is: how does the grant of legislative power to the Federal Parliament to make laws "for" the government of any Territory of the Commonwealth, pursuant to s 122 of the Constitution, interact with the limitation on the power of that Parliament where the "just terms" provisions apply, pursuant to s 51(xxxi)?
In Newcrest, Gaudron J[53] and Gummow J[54] favoured the view that s 51 and s 122 "should be read together". As Gummow J remarked in that decision: "Section 122 is not to be torn from the constitutional fabric."[55] This was also my view[56]. I shall never cease to protest against attempts to treat the territories of the Commonwealth as somehow disjoined from the Commonwealth[57].
Nevertheless, in Newcrest, Toohey J, who otherwise agreed with Gaudron J, Gummow J and me, disagreed that the contrary authority of Teori Tau v The Commonwealth[58] "should no longer be treated as authority denying the operation of the constitutional guarantee in s 51(xxxi) of the Constitution in respect of laws passed in reliance upon the power conferred by s 122 of the Constitution"[59]. While noting the force of criticisms made by other members of the Court of the decision in Teori Tau, Toohey J held back from what he described as the "serious step to overrule a decision which has stood for nearly thirty years and which reflects an approach which may have been relied on in earlier years"[60].
It follows that, to this day, Teori Tau has not been formally overruled. Nevertheless, as a matter of constitutional principle, like Toohey J, Gaudron J and Gummow J in Newcrest, I regard the contrary conclusion on the operation of the Constitution as preferable. Teori Tau should have been overruled. All compulsory acquisitions of property in and for the Northern Territory under s 122 of the Constitution are subject to the limiting requirements of s 51(xxxi) of the Constitution. So much follows from the obligation to read the Constitution as a single legal document, giving appropriate effect to all of its provisions.[61]
The public purpose of all compulsory acquisitions under federal or Territory law has a constitutional origin. Unlike the Australian States[62], it would not be open to the legislature of the Northern Territory (or to the Federal Parliament pursuant to a grant of self-government to that Territory) to circumvent the dual requirements for compulsory acquisition of property provided for in s 51(xxxi) of the Constitution. That is, it would not be open to the LAA, as a Northern Territory law, to provide for the acquisition of property otherwise than "on just terms" where such acquisition was from "any State or person". Moreover, any such acquisition of property would have to be "for any purpose in respect of which the Parliament has power to make laws". This would include the power (consistent with s 51(xxxi)) granted by s 122 in respect of laws "for the government of any territory".
Having mentioned this second constitutional question, as a potential issue in the proceedings, I will pursue it no further. First, it was not expressly relied on by the Ngaliwurru and Nungali peoples. They had other legal fish to fry. Secondly, I would infer that it was not the subject of the notice given under the s 78B requirement. Thirdly, and in any case, I can resolve the present appeal in a way favourable to the appellants without invoking the "public purpose" requirements of the Constitution, so far as they are explicit or implicit in the language of s 51(xxxi).
In leaving this question, however, I would point out that it would not be specially surprising if the legislative power of the Northern Territory, being part of the Commonwealth, a federal territory provided for in the federal Constitution, were subject to the equitable and public obligations imposed by the Constitution upon federal acquisitions of property. If that were so, the legislature of the Northern Territory might say that a Minister could acquire land "for any purpose whatsoever". However such a provision would be read down to conform to the equitable ("just terms") and public ("purpose in respect of which the Parliament has power to make laws") preconditions stated in s 51(xxxi) of the Constitution. Upon this approach, a compulsory acquisition for private purposes, so as to advance private interests, could fall outside the legislative power of the Northern Territory legislature. However, while the Ngaliwurru and Nungali peoples saw the acquisition of their native title interest in their traditional land to be outside the power of the Minister, they sought to reach that conclusion by a statutory rather than a constitutional route.

[82]

Belated recognition of native title: I return to the first statutory issue which is, in my opinion, determinative of the outcome of this appeal.
Within a statutory provision purporting to permit the Minister to "acquire land … for any purpose whatsoever"[63], and against the background of the amendments to the legislation for compulsory acquisition of interests in land in the Northern Territory[64], where is the ambiguity? On what basis might the provisions of the LAA be read in a particular way so as to exclude the acquisition of the interests of the Ngaliwurru and Nungali peoples under the LAA?
Although the language of the LAA is concededly very broad, and deliberately so when the predecessors for compulsory acquisitions of land in the Northern Territory are considered, a reflection on the arguments of the appellants sustains their contention that the apparently broad language does not extend so far as to permit the acquisitions proposed by the Minister, and notified, in the present case.
The starting point involves a consideration of the fact that the interests of the Ngaliwurru and Nungali peoples are something more than a legal interest in land of an ordinary kind. True, native title interests are now recognised as legal interests, after more than a century and a half of denial by the Australian legal system[65]. The interests of the appellants are true legal interests which the courts of Australia will protect and defend. They are interests in "property" which, as this Court has acknowledged, involves a bundle of claims to which the law will give effect[66]. The common law recognises that such interests may be of value, whether or not they have an economic or market value[67].
Nevertheless, this Court will not ignore the fact that the property interests of the Ngaliwurru and Nungali peoples, now called by the Australian legal system native title interests, are not exactly the same in their origin and character as the property interests in land derived under the general common law and by statute, which make up most of the legal interests in "land" or "property" that may be acquired under enactments such as the LAA.
A spiritual link to land: One of the important considerations that moved this Court, belatedly, to recognise the native title interests of indigenous peoples was the high significance attributed to their relationship to land by the laws and customs of Australia's indigenous peoples. For the indigenous peoples who maintained traditional associations with the lands of their ancestors, such interests connote a claim of a particular spiritual or quasi-spiritual character[68]. As a general and certainly a legal characteristic, this element is missing from the general common law governing interests in land in Australia.
Whereas other interests in land in Australia will be interests of a purely social or economic character, it is essential to an understanding of the step taken by this Court in Mabo that the Court gave recognition to the special place of land in Aboriginal law and custom, and the distinctive spiritual quality inherent in it. This was, I believe, an important element in the arguments that persuaded this Court to take the very serious step of reversing the previous understandings of the common law and affording common law recognition to native title[69].
Thus, a fundamental distinction between the acquisition of ordinary interests in land and the existence of interests giving rise to native title in Australia is the special spiritual relationship that exists between the native title owners and the land. There is much authority from Australia and abroad that recognises that important spiritual link between indigenous peoples and their land. The Aboriginal peoples of Australia, including the Ngaliwurru and Nungali peoples, are bearers of this element common to most indigenous peoples.
In Toohey, Brennan J stated that "Aboriginal ownership is primarily a spiritual affair rather than a bundle of rights."[70] This statement of Brennan J was cited with approval by Gleeson CJ, Gaudron and Hayne JJ and myself in joint reasons in Yanner v Eaton[71]. The Court there specifically acknowledged that there is a "connection with the land"[72], specifically, a "spiritual, cultural and social connection"[73]. In the Federal Court in Western Australia v Ward[74], Beaumont and von Doussa JJ cited Toohey and specifically the statement of Brennan J extracted above[75]. In Ward, Beaumont and von Doussa JJ also referred to the "religious relationship" described by Blackburn J in Milirrpum v Nabalco Pty Ltd[76], and to a "spiritual connection"[77] and "religious or spiritual" relationship[78]. When Western Australia v Ward was considered by this Court[79], Gleeson CJ, Gaudron, Gummow and Hayne JJ expressly affirmed that "[a]s is now well recognised, the connection which Aboriginal peoples have with 'country' is essentially spiritual"[80].
Nothing in my reasons in Ward casts doubt on this principle.[81] On the contrary, in that case I concluded that[82]:

[86]

This Court therefore took a significant step in Mabo in recognising the particular and distinctive relationship between indigenous peoples and their land. Brennan J (Mason CJ and McHugh J concurring) described it as a "connexion with the land"[86]; Deane and Gaudron JJ as a "special relationship"[87]; and Toohey J saw it as having significance to (among other things) "cultural or religious life"[88].
In The Commonwealth v Yarmirr[89], this Court also referred to a "spiritual connection with a given 'country'"[90]. In a dissenting opinion in Members of Yorta Yorta Aboriginal Community v Victoria, Gaudron J and I highlighted the "spiritual connection" to land[91]. Although that opinion was stated in dissent, by the time Yorta Yorta was decided, this attribute of the native title rights of Aboriginal Australians was well settled as part of Australian common law. It marks that form of title off from all other interests in land given legal effect in Australia.
In its earlier report, The Recognition of Aboriginal Customary Laws, the Australian Law Reform Commission also made reference to the relationship of Australian Aboriginals with their land. In particular, the Commission said that "[t]he link with land must never be forgotten in seeking to understand the structure and operation of Aboriginal customary laws."[92] The report makes reference to a source that emphasised the reliance placed upon their land by Aboriginal peoples for "spiritual sustenance"[93].
The foregoing features of Aboriginal interests in land in Australia are not unique to the indigenous peoples of this country. Indeed, even a cursory glance shows that the same element in the interests of indigenous peoples in their land has been a marked feature of the claims made by indigenous peoples in virtually every society established by European settlers in the age of imperial dominion. Thus in New Zealand, the preamble to the Maori Land Act/Te Ture Whenua Maori Act 1993 (NZ) recognises that "land is a taonga tuku iho [treasure handed down by our ancestors] of special significance to Maori people".
Canadian jurisprudence places even greater emphasis upon occupancy of lands for the purposes of land title claims. It is, however, recognised that if such[94]

[90]

Significance for acquisition of native title: Against the background of these authorities, for this Court now to approach the present contest as if the interests in land of Aboriginal communities in the Northern Territory of Australia were wholly indistinguishable from non-indigenous interests in land would, in my view, be to miss the essential step reflected in the belated legal innovation expressed in Mabo. That new legal principle accepted that the common law of Australia would give recognition to native title without altering that title or imposing on it all of the characteristics of other interests in land derived from the different (and originally feudal) law of land tenures inherited by Australian law from English law upon settlement[97].
Whatever may still be the situation elsewhere in Australia, a significant part of the Northern Territory comprises unalienated Crown land. Indigenous Aboriginal peoples constitute more than a quarter of the population of the Northern Territory. Many still live according to traditional ways. To pretend that, after Mabo and the successive iterations of the NTA, native title in the Northern Territory is no more than another interest in land, functionally and legally the same as the interests recognised under the inherited system of land tenures, would be to ignore both legal and social reality. It would be to distort the facts as they exist in actuality. It would be to overlook and underrate the fundamental change to Australian law that followed Mabo and that despite the fact that such change was accepted and reflected in the provisions of the NTA. Importantly, it would needlessly involve a failure of our law to live up to the promise of Mabo[98].
Native title in Australia is a special, distinctive and legally unique interest that is now given recognition by Australian common and statute law. Subject to the Constitution, like any other legal interest, it is not immune from legislative modification. Some modification has indeed occurred.
Nevertheless, against the background of the history of previous non-recognition; the subsequent respect accorded to native title by this Court and by the Federal Parliament; and the incontestable importance of native title to the cultural and economic advancement of indigenous people in Australia, it is not unreasonable or legally unusual to expect that any deprivations and extinguishment of native title, so hard won, will not occur under legislation of any Australian legislature in the absence of provisions that are unambiguously clear and such as to demonstrate plainly that the law in question has been enacted by the lawmakers who have turned their particular attention to the type of deprivation and extinguishment that is propounded. In Mabo Brennan J cited authorities from Canada, the United States and New Zealand that support the contention that "native title is not extinguished unless there be a clear and plain intention to do so"[99].
It follows that it is one more aspect of the special character of native title in Australia to expect in such matters that a legislature, before effecting modification and still more abolition of such title, will have:

[95]

In addition to the aforementioned attributes of democratic and electoral responsibility, Australian legislatures, on this subject, must be held accountable to the pages of history. If they intend deprivation and extinguishment of native title to occur, reversing unconsensually despite the long struggle for the legal recognition of such rights, then they must provide for such an outcome in very specific and clear legislation that unmistakably has that effect.
These hypotheses constitute no more than a reflection, in the particular circumstances of deprivation of native title interests of Australian Aboriginals, of the general principle of the common law of Australia requiring that legislation depriving individuals of established legal rights must be clear and unambiguous. General language will not suffice. And in this particular context there are special historical, ethical and national reasons that explain why Australian law insists both on strictness and explicitness.
Protection of democratic accountability: It might be argued that the general principle defensive of individual rights (including in respect of interests in land) needs to be modified in the current age to accord with the greatly expanded role of governmental activities and of legislation in providing for communal interests.
It cannot be denied that, today, the protection of individual rights must find their place in the general context of legislation designed to uphold the interests of the community in a broad sense[104]. However, of their nature, Aboriginal native title rights, such as those asserted by the Ngaliwurru and Nungali peoples in this appeal, are not the same as individual rights asserted for the exclusive benefit of those persons or corporations that possess them. Native title rights in Australia are communal in character. They belong to the indigenous community concerned. If an Aboriginal community is to be deprived of such rights, by what (at the very least) is an unusual legislative course involving an atypical purpose of governmental acquisition of property, it is not unreasonable that such a measure should be expressly identified, considered and approved by the legislature to whose enactment that consequence is later attributed.
The purpose of the subject acquisitions is atypical in the following important respect. The acquisitions proposed by the Minister are not intended to carry out a form of "private to public" transaction, with subsequent public use of the land in question for a public purpose. Instead, they are essentially to carry out a "private to private" transaction. The indicated purposes are unconnected with any need or use of the land by the Northern Territory itself, its government, a government department, statutory agency or office-holder on behalf of the public. Instead, it is no more than the acquisition of the private (but communal) interests of the Ngaliwurru and Nungali peoples in the land over which they have claimed (and now established) their native title, for the private benefit of the Fogarty interests and other private interests which are wholly commercial in character. Expressed another way the acquisition is for a non-governmental rather than a governmental purpose[105].
On the face of things, where the native title interests of the appellants are acquired for such private purposes, it would be reasonable to expect the legislature of the Northern Territory to provide expressly for such a transfer of interests through intervention of public compulsory acquisition. It is not reasonable to oblige courts to discover the authority for such a course in the general language of the LAA, enacted and applied against the background of almost a century of the restriction of compulsory governmental acquisitions in Australia to those for identified public purposes.
Only by the courts' insisting upon express provisions to authorise such "private to private" acquisitions would the legislature be forced to consider specifically whether it should enact such a distinctive law and with what safeguards. Only in that way is that legislature obliged to assume political accountability and democratic answerability to the electors for what it is said to have enacted.
I accept that the requirement of democratic accountability and express lawmaking for that purpose cannot be pressed to extremes[106]. However, the compulsory acquisition of Aboriginal native title interests in Australia is incontestably a most sensitive question. Not the least is this so because of the history of earlier denials and deprivations. Against that background, it is proper to apply, to a suggested legislative authorisation of deprivation and extinguishment of native title interests belonging to an Aboriginal community in the Northern Territory, a rule obliging the terms of the authorisation to be specific and particular. Especially so, where the acquisition is for the immediate enrichment of private commercial interests (a "private to private" acquisition) and not for the conduct on the acquired land of public activities of the acquiring government ("private to public"). Upon one view, the latter type of acquisition will be tolerated in a democratic society because undertaken for an identified public benefit, not just the private gain of another[107]. The same is not self-evidently true in the case of a "private to private" acquisition where publicly beneficial outcomes depend upon hopes and expectations rather than the legal character of the acquiring beneficiary.
Exceptionality of compulsory acquisition: From the earliest days of compulsory acquisition legislation in England and Australia, statutory provisions affording powers to governments or their agencies to acquire the property interests of individuals have been interpreted with considerable vigilance to protect those affected against abuse.
In Webb v Manchester and Leeds Railway Co[108], Lord Cottenham LC explained, in the context of the legislation under consideration there[109]:

[97]

The language in which his Lordship stated his disinclination to import the propounded power of acquisition may, it is true, appear somewhat outdated in the conditions of contemporary Australia. But it may not be so inapplicable to the particular problem that is now before this Court, namely a suggested deprivation and extinguishment of hard-won native title interests of indigenous Australians for the immediate private gain of commercial interests of other private interests, without needing the consent of the indigenous owners and their satisfaction with the price to be paid for the peculiar value to them of their native title interests.
The statement in Webb was cited by this Court in Clunies-Ross v The Commonwealth[110]. It still carries more than a grain of truth.
Exceptionality of "private to private": If acquisition for public purposes is still ordinarily treated by the law, in a society such as Australia's, as exceptional, and tolerable only because performed for the benefit of the community as a whole, acquisition of one person's private interests, so as to advantage a different person's private interest, is even more exceptional. In the present case, the Minister (and his Department) repeatedly made it clear that "private to private" transfer of interests was what they had in mind.
Briefing the Minister on a sale application over one of the lots affected, Lot 47, the Department in August 1999 informed the Minister of the intended offer of a Crown lease, convertible to freehold, in favour of the Fogarty interests. This led in September 1999 to the publication of a notice of proposed acquisition signifying the Territory's intention to acquire "[a]ll interests, including native title rights and interests (if any)" in the land. The same notice also identified the manner in which the Territory proposed to deal with the land, if so acquired, namely to "Grant a Crown lease term under the provisions of the Crown Lands Act to [a Fogarty company] for the purpose of goat breeding".
The same intention was made clear in the briefing to the Minister in January 2000 in respect of the proposed sale application over Lot 109, except that the envisaged purpose was stated to be "cattle husbandry". Lots 97, 98, 99, 100 and 114 were earmarked for auction "for the purpose of commercial/tourism development".
In a letter of April 2000, the Minister offered to approve a grant to the Fogarty interests of an estate in fee simple over Lot 109 and a Crown lease convertible to an estate in fee simple over Lot 47, subject to conditions, including that "any native title rights currently being acquired by my Department". The letter went on to state that "[t]he compensation required will be met by the Government, however, the company may be required to contribute to the administrative costs of acquisition". In May 2000, the Department wrote to the Northern Land Council informing it of the intention "to acquire and extinguish native title rights and interests over the … Lots as with all proposed acquisitions".
Thus, throughout these dealings, the purpose and object of the compulsory acquisition was clear. It was immediately to extinguish the private interests of the Ngaliwurru and Nungali peoples so as to enhance the private interests of the Fogartys and others. They were therefore classic "private to private" acquisitions. They involved taking from one private interest holder (with economic and other interests in the land) to enable it to be sold or leased to other private bodies for their entrepreneurial purposes.
In his majority reasons for the Supreme Court of the United States in Kelo v City of New London[111], Stevens J acknowledged:

[106]

Were it otherwise, the promise of stable possession of interests in land would be rendered inherently fragile. As Paterson J described it in Vanhorne's Lessee v Dorrance[119], we would "have nothing that we can call our own, or are sure of, for a moment; we are all tenants at will, and hold our landed property at the mere pleasure of the Legislature".
From a practical point of view, "private to private" acquisition through the intermediary of a government's legislative power for compulsory acquisition presents the risk of disturbing features that have not hitherto been characteristic of compulsory acquisitions of interests in land under statute in Australia. They present the possibility of a "powerful commercial party [harnessing sub-national governmental power] in order to squeeze out business competition, a strategy which [is] particularly effective if coupled with a threat to relocate an anchor business (and its accompanying jobs and revenue potential) to another urban centre"[120].
Such acquisitions could also sometimes give rise to risks of cronyism and corruption in government[121]. They could open up the possibility of acquisitions "just so some other people can get a lot more money"[122]. As the above demonstrates, acquisitions also present the danger that public funds will be used to compensate, as here, the Aboriginal owners for native title interests lost whereas the land is acquired for private individuals and companies that are thereby, to this extent, effectively subsidised by an often opaque transfer of public funds for private gain. The risk of unexamined and unexaminable corrupt practices in such transactions is all too obvious. That is not, of course, to suggest that this was a feature of the present acquisition. However, the risk is a reason for adopting the construction of the legislation that I favour.
In effect, to say this is to say no more than that to construe s 43(1) of the LAA so as to permit acquisition of the native title interests of the Ngaliwurru and Nungali peoples in the subject land for a "private to private" transfer in favour of the Fogarty and other private commercial interests, is to interpret the LAA to permit features of compulsory acquisition of property that have not hitherto been common or normal in Australia.
It may be that the legislature in the Northern Territory did intend these results. However, if so, it did not expressly address such consequences. It did not clearly manifest its considered will.[123] In compulsory acquisitions of property, it is a normal rule that the law is construed with a measure of strictness[124], requiring that the legislative acquisitions power clearly applies to authorise acquisition of the property interests of one person for the benefit of others[125]. Where the acquiring authority behaves effectively as an agent for a proposed private developer, rather than as "[the agent] of the inhabitants in general", courts in Australia[126] and New Zealand[127] have, until now, conventionally been suspicious and strict in their interpretation of the propounded law. Contrary to the submissions for the Minister, the principle applies as much to a law conferring powers on a Minister as it does to one conferring powers on a local authority or other statutory authority. It is the approach that I would take to the meaning and application of s 43(1) of the LAA. It is fatal to the construction which the Minister has urged this Court to adopt in respect of that provision.
The arguable textual impediment: In response to these arguments, the Minister pointed to the great generality of the language used in the amended provisions of the LAA ("for any purpose whatsoever"); the legislative history of amendments enlarging his power; and to the express contemplation of the acquisition of Aboriginal interests in land.
In the absence of any constitutional argument that there must be a public element of some kind in order to justify the acquisitions, should this Court take the legislature at its word? Should it hold that a "private to private" acquisition is within the language now appearing in the LAA? In the presence of such language, what textual source exists to read "for any purpose whatsoever" down so as to exclude the kind of private to private purpose disclosed in the present case?
Leaving constitutional imperatives aside, for the reasons that I have earlier indicated, the starting point for any task of statutory construction is the text. Legislative interpretation is in every case a "text-based activity. It cannot be otherwise."[128] Although a court's usual obligation is to give effect to the purpose of the legislature derived from the statutory text, when important values appear to have been overlooked, a court is entitled to conclude that apparently broad language does not, in law, achieve departure from those values, without an explicit indication to this effect in the text.
There are three textual features of s 43(1) of the LAA that arguably import implied limitations on the power of acquisition of interests in land, notwithstanding the amplitude of the reference to "any purpose whatsoever":

[112]

It is such land, as referred to in a notice under s 48(1) of the LAA, that "may be dealt with as unalienated Crown land under a law in force in the Territory", in accordance with s 48(2) of the LAA. The precondition of compliance with the compulsory acquisition procedures, including publication in the Gazette, is specified in s 43(1) of the LAA. These sections indicate that there is no power to acquire land completely "independently of purpose"[129]. The "purpose" is not now delimited, as it previously was, by adjectival qualifications such as fulfilment of a "public purpose". But s 48 of the LAA demonstrates that a statutory "purpose" must exist. It is vital to the availability of the power of acquisition. There is no power "apart from the purpose"[130].
Moreover, the context also imports limitations upon the ostensible width of the phrase "any purpose whatsoever". Thus, the purpose cannot be one outside the provisions of the LAA, a public statute of the legislature of the Northern Territory. Nor can it be one alien to the general objectives of the statute, being one providing for the compulsory acquisition of private interests in land. Nor could it be a purpose foreign to the repository of the power, a Minister, acting under the statute as a public office-holder in one of the governments of Australia.
Although a majority of this Court have not accepted the principle that the Crown or executive governments in Australia owe fiduciary obligations to the indigenous peoples of Australia in respect of their interests in land[131], the obligation of a Minister to act in good faith, according to law, adopting fair procedures and without the operation of irrelevant and irrational purposes, is well settled in this country's constitutional and administrative law. The executive power of government conferred on a Minister by Pt IV of the Northern Territory (Self-Government) Act extends to the execution and maintenance of the laws of the Territory. In the context, the purpose of acquiring land must necessarily be, to some extent at least, a purpose of the Northern Territory. It cannot be a wholly personal or idiosyncratic purpose of the Minister or a corrupt purpose or a purpose wholly or substantially for the private benefit of an individual corporation. It would not be a fulfilment of the Minister's power to exercise a statutory function solely or substantially for such.
There is thus a distinction between the use of land for a purpose of the Northern Territory and its disposal for the purpose of purely private gain of other parties. Arguably, the latter is outside even the kind of very broad "purposes" for which s 43(1) of the LAA provided. Had it been intended to authorise acquisition for immediate "private to private" transfer of interests in land (especially where such interests comprise native title interests of Aboriginal traditional owners) it would have been expected that such a power of acquisition and alienation would have been expressly provided for.
Other examples of specificity: To the protest that this conclusion imposes undue burdens upon the legislature which, by amendment, has deliberately endorsed language of broad generality, the answer may be offered that, when unusual purposes of acquisition have been contemplated, the legislature of the Northern Territory has indeed provided for them expressly, so as to remove any doubt that may exist by the invocation of language of generality.
Thus, where a particular private corporation is to be benefited by compulsory acquisition, express authorisation of that course has been enacted[132]. There are similar provisions governing acquisition by the Northern Territory for the benefit of particular local government bodies[133] and also grants to particular Aboriginal community bodies[134]. To remove any doubt, specificity, when it is desired, can be easily enacted. If that practice is sometimes observed, why should it not be insisted upon in the present case, given the countervailing considerations that favour reading down the phrase "for any purpose whatsoever"?
Public or private purposes?: The Minister argued that the creation of business investments and employment in Timber Creek was itself a legitimate public purpose of the Northern Territory, justifying the acquisition of the native title interests of the Ngaliwurru and Nungali peoples. That point of view recommended itself to the Court of Appeal[135].
However, if this were the case, it is no more than an indirect feature of the immediate transfer of the native title interests to the private rights of the Fogartys. Whether it was actually necessary, in order to procure the economic benefits, to acquire the interests of the Ngaliwurru and Nungali peoples by compulsion rather than by free negotiation in the open market, depriving them of rights of entrepreneurship that would otherwise belong to them by reason of their native title, is a matter of speculation.
It will rarely, if ever, be the case that compulsory acquisition of land will be proposed without some supposed public purpose. In the end, however, it remains necessary to decide whether what occurred is truly for a purpose of the Northern Territory or simply for the purpose of private economic gain which has some incidental or indirect advantages for others. Whilst the use of land acquired under compulsion by privatised utilities has complicated the traditional rationale of compulsory acquisition for public benefit in Australia[136], typically in this country, until now, the "private to public to private" acquisitions have been addressed by specific infrastructure legislation. Under such legislation, governmental authorities have ordinarily retained the acquired land, conferring rights of use on private entities on the basis of published conditions[137]. Or they have transferred interests in the acquired land under special provisions[138]. Or they have used specific powers that have engaged acquisition legislation[139] and permitted particularised uses[140].
These features of compulsory acquisition powers, and their deployment in Australia until this time, tend not only to support the expectation and requirement of specific enactment to authorise a "private to private" acquisition, rather than reliance on the general language of a statute like the LAA. They also deny acceptance of the argument that the indirect and flow-on effects from private gain justify the characterisation of the beneficiary of the acquisitions as the general public or community (here that of the Northern Territory) such that the purpose may be regarded as public or governmental. There is no legal guarantee that such hopes or expectations, however genuine, will be fulfilled. There is no statutory procedure or audit to hold the Fogarty and other private interests to such public purposes.

[119]

The foregoing conclusion is sufficient to uphold the attack by the Ngaliwurru and Nungali peoples on the Minister's purported notifications of the acquisitions of their land. The appeal should therefore be allowed. The orders of the Court of Appeal of the Supreme Court of the Northern Territory should be set aside. In place of those orders, this Court should order that the appeal to the Court of Appeal be dismissed. The Minister should pay the appellants' costs in the Supreme Court, the Court of Appeal and in this Court.
CRENNAN J. The appeal should be dismissed with an order for costs in favour of the first respondent as proposed by Gummow, Hayne and Heydon JJ. I agree with their Honours' reasons and with the additional reasons of Gleeson CJ.
KIEFEL J. I agree that a compulsory acquisition of native title rights and interests under a law referred to in s 24MD(2) of the Native Title Act 1993 (Cth) ("the NTA") is, by reason of that sub-section, effective to extinguish those rights and interests where they are the only outstanding interests in unalienated Crown land. The more substantial question is whether the acquisitions in this case are for a purpose to which s 43(1) of the Lands Acquisition Act (NT) ("the LAA") refers. In my respectful view, they are not.
Section 43(1) provides that "[s]ubject to this Act, the Minister may acquire land under this Act for any purpose whatsoever". If the procedures required by the Act are followed, land may be acquired by compulsory acquisition[144]. At an earlier point in time the sub-section had required that an acquisition be for "public purposes". Native title rights and interests qualify for acquisition and compensation because they are recognised by the LAA as interests in land[145]. (I shall continue to refer to their "acquisition" in these reasons, although no other person can hold the rights, and the process referred to in s 43 is a step towards their extinguishment). The Ngaliwurru and Nungali Peoples are amongst members of estate groups in whose favour a determination of native title has been made over lands which include the lots in question, in the Town of Timber Creek in the Northern Territory[146].
Three notices of proposed acquisition were issued by the Minister with respect to the lands. They each advise that it is proposed to deal with the land in question by granting a Crown lease. The uses proposed under the leases are "goat breeding, hay production, market garden and ancillary"[147]; "a cattle husbandry facility"[148]; and a "commercial/tourism development"[149]. In each case it is said that, upon completion of the development, the lease may be exchanged for freehold title. The Minister has given approval for the sale of the land the subject of the two leases firstmentioned, provided the native title rights and interests are acquired. There is no suggestion that the proposed uses form part of any wider plan by the government of the Northern Territory. They were proposals put forward by the developers. It is not disputed that the acquisitions involve the divestiture of rights of the native title holders in order to provide the leases and grants of land to the developers.
The terms of s 43(1) do not permit land to be acquired absent any purpose for the acquisition and it is apparent that the purpose required is one connected with the Minister's act of acquiring the land. These propositions are accepted by the first respondent, who puts the question on the appeal as: whether s 43 enables the Minister to compulsorily acquire native title rights in unalienated Crown land for the purpose of conferring rights and interests in the land on others. The statement does not suggest that the executive government itself has any use for, or need of, the land. The acquisition, and following extinguishment, of the interests in question is sought only so that the lands can be made available for the use of others. An underlying contention may be that an intention to effect a grant of land, within power, suffices as a purpose under s 43(1).
The construction of s 43(1) contended for by the first respondent is of a largely unconstrained power to acquire land, provided by the words "for any purpose whatsoever". It relies also upon the deliberate omission of the requirement that there be public purposes for the acquisition. The omission might confirm an intention that the sub-section extends to non-governmental, private, purposes.
The prospect that there may be a public need for a citizen's property, to which their private right must defer, provided they are properly compensated, is well known to European and western legal systems[150]. In some commentaries, notions of public necessity, public utility, public interest, the common good and the common purpose are treated as interchangeable[151]. Those notions may imply a wider socio-economic justification for the taking of property beyond a direct use for, or a need of, the land. Early Commonwealth legislation, dealing with the compulsory acquisition of property, did not state the basis for acquisition quite so broadly. The "public purpose" which permitted an acquisition was defined as "any purpose in respect of which the Parliament has power to make laws"[152]. The Lands Acquisition Act 1955 (Cth) altered that definition to include, in relation to land in a Territory of the Commonwealth, "any purpose in relation to that Territory"[153].
Issues concerning the exercise of a power of compulsory acquisition, to the benefit of a private interest and not for a public purpose, have arisen in cases concerning local authorities and other statutory bodies. In Werribee Council v Kerr[154] Higgins J observed that "[t]he Legislature did not give to municipal councils power to interfere with the private title of A for the private benefit of B"[155]. The first respondent points out, correctly, that these cases need to be understood in context. They more often involve powers limited by the specific purposes enumerated in the statute granting the power. Nevertheless, where very wide purposes have been stated, the courts have not countenanced the use of the power to benefit private interests. In Prentice v Brisbane City Council[156] the Council was restrained from proceeding with an acquisition because its main purpose was to assist a developer "notwithstanding that in a broad sense the interests of the city and its inhabitants were being served by the subdivision and the opening up of the lands"[157].
The approach evident in Prentice is reflected in other areas of property law[158]. It is consistent with the principle of the law, concerning statutory interference with economic interests, which is applied to the interpretation of statutes containing powers of that kind[159]. The general rule of construction was stated by Griffith CJ in Clissold v Perry[160] to be "that [statutes] are not to be construed as interfering with vested interests unless that intention is manifest". In Bropho v Western Australia[161] it was said that any intention to infringe rights must be made "unambiguously clear".
Martin (BR) CJ in the Court of Appeal considered that the legislature must be taken to have intended to create an executive power wider in its scope than earlier provisions when, in 1998, it substituted the words "for any purpose whatsoever" in s 43(1)[162]. Further, in his Honour's view, it is to be assumed that, when enacting the amendment, the legislature was aware of the history of the Act and the meaning which had been given to the expression "public purpose"[163]. In the latter respect his Honour had in mind the decision in Clunies-Ross v The Commonwealth of Australia[164], which concerned the Lands Acquisition Act 1955 (Cth).
Section 43 of the 1978 LAA was enacted following the passing of the Northern Territory (Self-Government) Act 1978 (Cth), which provided the Northern Territory legislature with the power to make laws for the peace, order and good government of the Territory[165] and, with respect to the acquisition of property, only on just terms[166]. Section 43 provided that the Minister could acquire land for "public purposes", which term was defined to mean "a purpose in relation to the Territory and includes a purpose related to the carrying out of a function by a statutory corporation"[167]. The second reading speech discloses that the bill proposing it was amended "to make clear that the bill only authorises compulsory acquisitions for public purposes"[168]. In 1982 the section was amended so that it read "[s]ubject to this Act, the Minister may, under this Act, acquire land". This could hardly be more widely stated. Despite the absence of a stated purpose, the power was explained to be "for purposes beneficial to the Territory and the people of the Territory"[169]. In 1998 the current section was included along with a number of other amendments to the LAA[170]. As Martin (BR) CJ observed[171], their purpose was to ensure that acquisitions of land that was, or which might be, subject to native title interests complied with the NTA. It was in that context that the words "for any purposes whatsoever" appeared.
The legislative history of s 43 does not provide much assistance in understanding the choice of expression in the 1998 amendment to s 43, or its intended operation. The context in which those amendments were effected does not provide any answer to those enquiries, given in particular that s 43(1) affects all interests in land, not just native title rights and interests. The "public purpose" requirement had been removed some time before the 1998 amendments and even before the decision in Clunies-Ross. Regardless of the statement appearing in the extrinsic materials to the 1982 Act, clearly enough a wide power was sought. In any event it is necessary to consider the effect of that omission and whether it extends the purpose necessary for the acquisition to one to benefit private interests.
In Clunies-Ross[172] the Commonwealth sought to acquire land on Home Island, Cocos (Keeling) Islands for the sole purpose of divesting the owner of it. On one view, that favoured by Murphy J, the exclusion of the owner was to the benefit of the Island people[173]. The majority, however, held that, as a matter of language, a power to acquire land for a public purpose is prima facie limited to "an acquisition of land which is needed or which it is proposed to use, apply or preserve for the advancement or achievement of that purpose"[174]. Their Honours said that the purpose of which s 6 spoke was the use to which the land acquired was to be put[175]. The relevant Commonwealth purpose identified by their Honours, as necessary to justify acquisition under the Act, was a "planned use, application or preservation of the land itself or of any buildings thereon"[176]. It was not sufficient that it was sought, by the acquisition, to achieve some consequential advantage which could be described as a more remote public purpose[177].
The majority in Clunies-Ross were not attempting to define a public purpose by reference to the nature of the intended use. Their references to it were not confined to some physical development of the land, in the nature of public works, or a use by the public of the land. Rather, their Honours considered that a purpose for the land necessarily involved a plan for its use. That provided the basis for the exercise of the power. They did not suggest any limitation on what such a plan might be, so long as it was with respect to the land. This construction was supported by, but not derived from, other provisions of the Act and the long title which spoke of the land being "suitable" or "required" for public purposes[178]. Expressed another way, the Commonwealth had to have a need for the land, as their Honours observed at a later point in their judgment[179].
The argument for the Commonwealth in Clunies-Ross, and the observations of the majority with respect to it, is worthy of mention. The Commonwealth sought to extend the power of acquisition beyond the purposes stated in s 6 of the Lands Acquisition Act 1955 (Cth). It contended that the definition of "public purpose" in that section reflected the wider provisions of s 51(xxxi) of the Constitution and should be read accordingly[180]. Section 51(xxxi) provides a law-making power for the peace, order and good government of the Commonwealth with respect to the acquisition of property, on just terms, from a State or person for any purpose in respect of which the Parliament has powers to make laws. It was not necessary for their Honours to determine whether the argument was correct. They did, however, observe that the cases dealing with s 51(xxxi) had assumed that the power there spoken of was confined to laws with respect to the acquisition of property "for some purpose related to a need for or proposed use or application of the property to be acquired"[181]. On this approach there is little difference between the purposes spoken of in the two provisions, albeit they are differently worded, and s 51(xxxi) in wider terms.
The authorities to which their Honours referred included the decisions of Dixon J in Andrews v Howell[182] and Attorney-General (Cth) v Schmidt[183]. One aspect of the reasoning in those cases is that the power given by s 51(xxxi) is referrable to the acquisition of property by the Commonwealth for use by it in the execution of its functions and administration under its laws. His Honour said that, whilst the expression "for any purpose" is doubtless indefinite, in the section it refers to the intended use of the executive government of the property acquired[184]. In Andrews v Howell his Honour considered that there was some difficulty in applying the provision to an acquisition of property, the purpose of which was its immediate disposal, where the executive was not itself interested in the commodity in question and which it did not intend to use for any governmental purpose[185]. The purpose there spoken of may be thought to be similar to those in the present case.
The relevance of the statements by Dixon J is to the construction of s 43(1) and the apparently unlimited power of acquisition "for any purpose whatsoever". No question arises on the appeal as to the relationship, if any, between s 51(xxxi) and laws made under the Northern Territory (Self-Government) Act 1978 (Cth)[186]. In my view the reasons of the majority in Clunies-Ross should be understood to say that the critical words of the provision were "acquire … for a … purpose [of the Commonwealth]". They convey a need for the land as the requirement for an acquisition. The basis for the need is the proposals for the land. The statements in Andrews v Howell and Schmidt confirm, if it be necessary, that the need for the land must be that of the acquiring authority.
It follows, in my view, that the word "public" in the former s 43(1) did not have the importance attributed to it in argument and by the Court of Appeal. It did not qualify "purpose" in any meaningful way, such that its removal might imply the opposite. It confirms what otherwise appears from the section, namely that the purpose for the land is a governmental purpose. This is conformable with the plain words of the section. The expression "any purpose whatsoever", understood in this light, extends the nature of what might be proposed for the land, but refers to the government's proposals. The omission of the word "public" in the section provides no warrant for a construction that the power of acquisition may be used for private purposes in connection with the land. There is no clear statement of any such intention.
The majority in Clunies-Ross reiterated that an executive power to deprive a citizen of property by compulsory acquisition should be construed as confined "within the scope of what is granted by the clear meaning or necessary intendment of the words by which it is conferred"[187]. Their Honours had earlier observed that, if an Act was to be construed as extending to purposes quite unconnected with the need for the land, the ministerial power thereby created would be so wide that[188]:

[121]

There is nothing in the LAA to suggest that it was intended to operate such that one person's interest in land might be taken in order that others might put it to some use agreed upon by the Minister. The Act itself does not state that the "purpose" for acquisition was intended to be non-governmental and no explanation to that effect was given with respect to s 43 in the bill as it was proposed. It has been observed that even in England in the 19th century, private bills which bestowed public acquisition powers on private for-profit companies were subject to procedures requiring a public case to be made out[189].
The provision of controls and safeguards against possible executive abuse might support an inference that the power was intended to be limited only by the Minister's consideration that the acquisition was warranted. Some importance was placed upon the absence of such measures in Clunies-Ross[190], as confirming that no such wider power was intended.
The provisions of the LAA may be thought to go some way towards an independent assessment of a proposal to acquire land, but they are limited in their effectiveness as safeguards. A Tribunal is created to hear objections against the taking of land[191]. Any recommendation it makes, with respect to lands generally, that land not be taken, is made without specification of the matters to be considered by it and the Minister is required only to take the recommendation into account before proceeding to acquisition[192]. These measures cannot be said to be designed to identify wrongfully motivated acquisitions.
There are further requirements with respect to native title rights and interests. The Tribunal must consider matters such as the effect of the acquisition upon them, the economic or other significance of the acquisition to the Territory or the region, and the public interest[193]. Where the Tribunal recommends that such interests not be acquired, the Minister is further required to consult the Minister responsible for indigenous affairs and to be satisfied that it is in the interests of the Territory not to comply with the recommendation[194]. The expression "interests of the Territory" is defined to include social and economic benefits, including that of Aboriginal peoples and Torres Strait Islanders[195]. These requirements may more readily expose problems in the background to an acquisition, as well as its effect, but the reason for their inclusion is compliance with the procedural requirements of the NTA with respect to the compulsory acquisition of native title interests[196]. They are directed to the consideration that the Minister should give to an acquisition, because of the consequence which follows it, the extinguishment of those rights[197]. The provisions do not assume the existence of a wide power of acquisition, nor the possibility that such a power might be exceeded. It cannot therefore be inferred by reference to them that a power, of the kind in question, was intended.
The first respondent relied upon certain provisions of the LAA as supporting a wider view of s 43. Reference was made to s 33(1)(b), which requires that the notice of proposed acquisition give only details of the manner in which it is proposed to deal with the lands if acquired[198]. This was said to be consistent with the power in s 43(1) extending to the acquisition of land so that it may be leased or granted to another. And there was said to be a possible assumption, in s 54(1), that land could be acquired for a third party. It provides that neither the Territory "nor any person for whom the land is acquired" is to enter upon the land within a specified period following acquisition.
It is true that s 33(1)(b) is not expressed to require, in terms, a statement of the purpose for the acquisition. It may be that it should. The required reference, to how it is proposed the land be dealt with, is ambiguous. It does not necessarily suggest a dealing, in a transactional sense. It is apt to refer, more generally, to what is intended to be done with the land. Section 54(1) is in a different category. It is not readily explained, although the appellants point to another provision, which may be seen as inconsistent with it. Section 48(1) refers to a situation where land acquired under the LAA "is no longer required for the purpose for which it was acquired". This implies a need for the land as the basis for its acquisition in the sense referred to in Clunies-Ross. In any event these provisions are not by themselves capable of supplying a meaning to s 43(1); at most they are capable of supporting or confirming a construction otherwise arrived at.
No member of the Court of Appeal suggested that a purpose permitted by s 43(1) may be the divesting of native title rights and interests so as to enable a grant to other persons, in order that they be able to carry out their proposals for the development of the land. Martin (BR) CJ held that the power given by s 43 did not extend to the purpose of giving the land of one citizen to another, absent a purpose related to a need for, or a proposed use of, the land[199]. Significantly, the reasons of his Honour and those of Mildren J[200] involve a search for a connection between the acquisition of the land and the Territory's need for it. Martin (BR) CJ concluded that the acquisitions referred to in the notices were for an "underlying" or "ultimate purpose" relating to the need for or proposed use of, the land[201]. Mildren J said that the promotion of industry and the provision of land to that end were both the business of government[202].
It is abundantly clear that in the present case no use by the Minister or the Territory is proposed, even in the most passive sense. The land is to be acquired for the purpose of its use by interested third parties who are later to be granted freehold title in the property. The use of the power of grant under the Crown Lands Act (NT) is a means to effect that purpose. It is not the purpose itself. Absent a governmental purpose, as s 43(1) requires, the exercise of the power stands as no more than a clearing of native title interests in order to effect leases and grants of the land for private purposes.
A view that there can be seen to be some governmental purpose in providing land and promoting industry relies upon a consequential effect. Even if it answers the description of a purpose, it is one remote from that which clearly explains the acquisition. It may provide some other justification for the exercise of the power, but it does not answer directly the question as to what is the purpose for the acquisition of the land.
Stated as aims, these potential effects hint at a socio-economic purpose as referrable to the power. An argument based upon such a purpose would involve wide notions of the public interest and social need. They might not be thought to have informed many of the statutes relating to the acquisition of land in Australia, but they may reside in law-making powers. It is possible that the purposes permitted by s 43(1) extend to purposes of this kind, but that is not a line which was pursued in argument, which merely alluded, in a general way, to some connection to governmental interest in the outcome. The Supreme Court of the United States has grappled with the question of takings of land for the purpose of economic development, most recently in Kelo v City of New London, Connecticut[203]. The question is one of considerable difficulty, but it does not arise on the facts of this case. The acquisition of the land was not connected to such a purpose. The evidence, such as there was on the topic, did not even suggest a public benefit as a likely outcome.
The Tribunal, which considered the issues of economic and social benefit, found that the proposed leases and grants of land, for animal husbandry and associated purposes, had little economic or other significance to the region, no benefit to the appellants and there was little or no public benefit in the acquisition. The only benefit identified was that to the proposed developer[204]. In relation to the release of land for tourist and other developments, the Tribunal said that it was not possible to come to a view about whether there was a wider benefit. One could only have regard to the developer's belief in the viability of the proposal[205].
For these reasons I consider that the acquisitions are not a valid exercise of the power given by s 43(1) of the LAA.
I would allow the appeal, set aside the orders of the Court of Appeal of the Supreme Court of the Northern Territory and order in their place that the appeal to that Court be dismissed. The first respondent should pay the appellants' costs of the proceedings in the Supreme Court and of the appeal in this Court.

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